UN Special Rapporteurs Demand Information to Justify OBL Killing, and What Holder Should Have Said and Koh Should Say

Politico reports that two UN special rapporteurs – one on extrajudicial execution, and the other on counterterrorism and human rights – are calling on the US to release information to the United Nations to justify its killing of OBL. In a break with the administration’s policy of engagement with the UN, it seems to have brushed off the special rapporteurs.

As I have pointed out in earlier posts, the weak way in which the administration addressed the facts and law, from the very moments after the President’s speech, invited the advocacy communities, the UN human rights machinery, the NGOs, activist-academics, Euro-intellectuals to seek to seize the legal-political narrative. They have largely done so, to judge by the reporting on NPR and the leading papers. The administration is at risk of losing something that, granted, it would reasonably have assumed would be the least-raised and least interesting question – viz., the fundamental legitimacy of killing OBL. Losing it as a matter of the legitimacy of legal policy, that is, at least with influential communities of thought and opinion outside the United States, and even within.

Legitimacy is always easy to undervalue and pooh-pooh, mostly because it is a passive substratum – the thing you don’t miss until it’s gone or reduced. But if you are the advocacy community, targeted killing is just the next phase of the campaign that started with interrogation and detention – and from its point of view, why shouldn’t it be? It has no actual obligations to keep anyone safe from attack, no skin in the game of national security, and at this moment it has both an opportunity to undermine the legitimacy of targeted killing and a threat, in the form of the newly revived debate over interrogation.

II

In the moments after the speech, the advocacy communities saw their task as simply containing the damage done to their campaign against targeted killing by a highly successful raid that demonstrated just how targeted it could be. As soon as Brennan was done talking, however, the opportunity to go on counterattack was clear and to find ways to undermine the legality of counterterrorism targeted killing as such. If it’s murder to do it to Osama Bin Laden, after all, then how can it be legal to do it to anyone else?

There are answers to that, starting with disputing how it is framed, but one does have to give them. I always find it puzzling that this administration, with so many lawyers and so many drawn from activist parts of the academy and the NGOs, seems so deaf to the issues of legitimacy for the security policies on which it relies. Not just things it claims merely to have inherited from the past, but the ones, like drone warfare and targeted killing, that it has pioneered and which will be its signature historical contribution to warfare.

One understands the difficulty at the moment all this happened; operational secrecy meant that very few people could know about it, and most of them would be operational, not lawyers.

Lawyers were certainly involved in the prior tactical planning, but at a level of the SEAL team itself – from their tactical lawyering standpoint, not that much different from any other compound assault in Afghanistan. They could not be tasked with addressing the high level issues, such as Pakistani sovereignty, and the US view – ably sketched out by former DOS lawyer Ashley Deeks – that sovereignty is no bar if a country is “unable or unwilling.” It is far less clear what the involvement of lawyers was at the senior level.

III

So one understands Brennan’s hesitation; he’s not a lawyer, he’s not the Attorney General, or the Legal Adviser to State. He should simply have said, it was reviewed and passed, it was legal, and I’ll let the lawyers take up these issues later. By the time Eric Holder was making statements, however, this all should have been laid out – if only because the positions backing the US’s actions have been US policy and legal views for many years, and were all stated succinctly by Legal Adviser to State Harold Koh only a year ago in a famous speech. Why wasn’t Holder briefed to firmly say exactly what Koh said? Politico notes:

Attorney General Eric Holder said Wednesday that bin Laden was a legitimate military target and that his killing was authorized under a theory of “national self-defense.” U.S. officials have said that the raid team was prepared to capture bin Laden if he surrendered. However, American officials have made clear that there were few scenarios under which such a surrender would have been accepted, since the Navy SEALs who carried out the operation were deeply concerned about the possibility he might detonate explosives on his person or in his compound.

IV

The legal term that Politico means here is not “accepted,” but “completed.” The reason is legally crucial. The law of war requires that surrender be accepted, if it has been “completed” in the legal sense that clear evidence of an intent to surrender has been manifested. Completion of the act of surrender is much more complicated and fraught than might be ordinarily understood, as I noted in an earlier post. And, as operational law, tactical level JAG have emphasized to me many times, there is no obligation to pause the attack (so losing the advantages of surprise, speed, etc.) in order to find out. So, to say what the Attorney General should have said: It is

okay to enter a country that is “unable or unwilling,”

okay to use lethal force,

okay to attack without warning,

okay to attack an unarmed, unthreatening, but still lawful target,

okay to attack without inviting surrender,

okay to press the attack with lethal force and without pause, the exception being if the target were to succeed in completing the act of surrender – which, in this case, is likely to be never, because there will not be enough time, and

okay not to give the target time to make an attempt at surrender, even if inclined or even attempting, by pausing or slowing the attack.

Meanwhile, has the administration regained its composure? No – and it won’t manage to do so until someone with Harold Koh’s stature starts speaking out, and pointing out that the legal standards are precisely what he laid out in his speech a year ago, and none of it represents anything other than long-held US legal positions.

I think there is also an urgent need for senior military lawyers, ones who are in charge of interpreting the nitty-gritty legal circumstances of surrender, to explain to the public why surrender is not just, “white flag, done.” In the comments to an earlier post of mine at Opinio Juris, two commenters – one a former Navy JAG with a distinguished career, and the other author of a well-regarded treatise on targeting law – each weigh in on what surrender means in practical legal terms. They manage to say more than all the senior administration officials put together – merely in the comments to a blog post.

V

I understand why the administration was behind on this in the first hours after President Obama’s speech; I cannot understand why it is allowing the legal narrative to be shaped by others at this date. John Bellinger has said more to defend the administration on the legality of these operations, and far more persuasively, than anyone in the administration to date.

It is past time for Harold Koh to put some legal order onto the administration’s international law chaos. Secretary Clinton, call your lawyer.